At San Diego Divorce Attorney, we specialize in marriage law and family law, particularly for same-sex couples, and we work with clients across the Greater San Diego Region.
Our areas of expertise include marriage and registered domestic partnerships for lesbian, gay, bisexual, and transgender (LGBT) couples in California. We are also experts on child paternity, adoption, and custody, as well as same-sex divorce and domestic partnership dissolution.
The legal field of same-sex marriage is evolving rapidly, with the rights of same-sex couples seeming to change daily. These changes are further complicated by local, state, and federal programs and can affect not only same-sex marriage, but family law areas. We are committed to staying abreast of current legislation and court decisions, at both the federal and California state levels.
The following sections provide brief, general information about topics relating to same-sex marriage and divorce. As always, this information is not intended as legal advice; only an attorney can provide expert, knowledgeable legal advice on your situation.
Contact San Diego Divorce Attorney today at 858-529-5150 to schedule your first consultation and learn how we can help you and your partner.
Same-Sex Marriage in California
Whether same-sex marriage could be legal was the topic of significant debate in California throughout the 2000s. In 2008, the State of California began issuing marriage licenses to same-sex couples. This legal licensing was paused in 2013, albeit briefly, as citizens and courts debated legality and rights.
In 2015, the U.S. Supreme Court ruled that same-sex couples, including LGBT couples, should have the same legal rights to marriage and divorce as heterosexual couples.
Options for Same-Sex Couples: Marriage versus Domestic Partnership
In California, same-sex couples have the options between marriage and domestic partnership (registered or unregistered).
California state law defines a marriage, both opposite- and same-sex, as a personal relation between two people aged 18 or older that arises from a civil contract. A same-sex marriage has the same rights as opposite-sex marriage, on both the federal and state levels, regardless of state of residency. The rights and benefits to same-sex marriage include:
- Social security benefits
- Tax benefits (including income, property, etc.)
- Employee benefits (including health insurance, death benefits, etc.)
- Immigration benefits
In California, a registered domestic partnership (RDP) is defined as domestic partnership marked by intimacy, commitment, and mutual caring. This is a unique legal recognition that is specific to same-sex couples (with a couple exceptions). Like a marriage, RDPs apply to parties 18 ages and older and require e filing of Declaration of Domestic Partnership.
A registered domestic partnership does provide many of the same rights and responsibilities that marriage does, but not all. The following rights are provided to both RDPs and same-sex marriages in California, including:
- Legal status
- Right to make medical and emergency decisions for incompetent spouses
- Spousal support in case of divorce or dissolution of partnership
Unlike same-sex marriages, registered domestic partnerships in California are unique in important ways:
- Many other states do not recognize RDPs at all. If they do recognize RDPs, they are treated differently from same-sex marriage.
- For federal tax purposes, the federal government does not recognize partners in a registered domestic partnership as legal spouses. This means that federal and other states’ tax benefits that apply to legally married couples do not apply to RDPs. As a federally-funded benefit, Social Security does not extend to partners in an RDP. This can also complicate how children are counted as dependents for the couple.
Note that in cases of unregistered domestic partnerships, completely different legal principles and requirements are applicable, including whether both parties can share ownership or control of assets.
Considering a Prenuptial Agreement for Same-Sex Marriage
Same-sex couples are entitled to entering a prenuptial or premarital agreement prior to legal marriage or registered domestic partnerships. Common topics that prenuptial agreements can cover include:
- Agreeing on the financial rights and debt obligations of each party
- Protecting a business owned by one party
- Dividing property for children from prior marriages or partnerships
Importantly, prenuptial agreements do not settle child custody or child support, as the court will decide the best interests of any children at the time of divorce.
Prenuptial agreements can have many benefits, including:
- Encourages early communication around traditionally stressful topics, like money, assets, family, etc. in a way that may actually benefit both
- parties.Protects children from the intense fighting and emotional turmoil that accompanies the end of a marriage
- Clarifies estate planning
- Helps avoid extensive and expensive litigation, time, and emotional stress should the parties opt for a divorce
- Avoids complications that may arise when dealing with divorce or dissolution of marriage outside of California, as individual states may recognize the rights and benefits of same-sex marriage in other ways, or not at all
Establishing Your Own Prenuptial Agreement
Two parties have the legal right to create and enter into their own prenuptial agreement, without legal assistance. However, courts can find that these agreements are unfair and/or not legally sound and can determine the documents legally non-binding at precisely the time the agreements were meant to help.
Fortunately, prenuptial agreements are flexible. A common misconception is that couples who enter into a prenuptial agreement are locked into them, even as their situations change. This is untrue, as these agreements can be altered after marriage, in what is known as a post-nuptial agreement, as long as both parties agree to the changes.
Pre- or post-nuptial agreements are worth reviewing at the time of significant changes, such as relocating to a different state or having or adopting children.
Naming Rights in Same-Sex Marriage
The California State Law Section 306.5 indicates that both parties that have entered into a legally-binding, solemnized marriage are not required to have the same name. Neither party is required to change his/her name, though one or both parties can elect to change middle or last names, or both.
Divorce in Same-Sex Marriages and Partnerships
Just as there is a legal difference between same-sex marriage and registered domestic partnerships, there are legal differences between divorce, which applies to marriages, and the dissolution of RDPs.
A marriage can be dissolved in three ways:
- The death of one partner
- The legal judgment that dissolves a marriage (known as a divorce)
- The legal judgment that nullifies a marriage (known as an annulment)
In California, parties pursuing a divorce are not required to justify reasons for divorce. One party can simply indicate that s/he wants a divorce and need not prove that something “wrong” had been done by the other spouse. This is known as a “no fault” divorce. When judging a divorce, the courts only consider that one or both parties want to divorce.
California state law recognizes two common reasons for pursuing a divorce:
- Irreconcilable differences leading to the marriage’s breakdown (the most common reason)
- The Legal and permanent incapacitation of one spouse to make decisions
An annulment, on the other hand, is the nullification, or erasing, of a marriage. Sometimes simpler to arrange than divorce, annulments require proof of a significant qualifying factor deeming the marriage invalid, such as that one party was underage, involved in an existing marriage that wasn’t legally ended, or entered into marriage by coercion or fraudulent activity.
In most registered domestic partnerships, a dissolution is pursued similarly to a divorce: the parties file a court action with the Secretary of State.
Why Do We Need an Attorney for Divorce?
A divorce often involves countless emotional, financial, and legal decisions that two parties must consider. These decisions can become contentious, and may be further complicated by ever-changing LGBT laws, on both the state and federal levels. Partnering with an expert attorney helps alleviate some of these issues while providing advice, support, and communication.
Regardless of whether you’re pursuing a divorce or partnership dissolution, both parties must understand their legal rights as individuals on a variety of topics, including but not limited to:
- Dividing property: Couples are often surprised to realize that dividing property and assets is not as easy as splitting them in half based on value. After all, California state law calls for a fair distribution of assets, which is not the same as an equal distribution.
- Deciding alimony and/or spouse support: Same-sex couples who are legally married in California or other states or are legally registered domestic partnerships in California have the same rights and responsibilities to spousal support as heterosexual couples.
- Establishing parentage, child custody, and/or child support: In same-sex couples that have children, the legal establishment of parentage is required prior to courts determining child custody and/or child support. In the case of non-biological parents, parentage may have been established prior to filing for divorce or dissolution of partnership, but it may not have occurred. Further, the rights and responsibilities that accompany child custody and child support are different in marriages versus domestic partnerships.
Can We Obtain a Divorce without an Attorney?
Technically, a divorce is a legal action that two parties can perform on their own, without third-party assistance.
A do-it-yourself divorce is not an option to take lightly. Small mistakes can lead to legally-binding situations with ramifications that can hinder spousal or child support, division of assets, etc. Divorce is already an extremely stressful and emotional situation without the added stress of understanding and correctly applying divorce law to determine long-term solutions.
LGBT Divorce for Non-Residents of California
For same-sex couples who married in California, there is no residency requirement for divorce. This means that couples can dissolve their marriage or RDP even if they currently live in a state that doesn’t recognize same-sex divorce. There are, however, limitations to this:
- Filing for divorce or dissolution must occur in the California county where the partners married.
- Enforcing rulings on divided property, spouse support/alimony, and child custody and child support for non-California residents can be difficult, especially if both partners reside outside of the State, as other states recognize the rights for same-sex marriage and divorce to varying degrees.
Opting for Mediation in Same-Sex Divorce
Mediation is the practice of using a professionally-trained, unbiased third-party (known as a mediator) to help two parties reach agreement in order to avoid litigation in a courtroom. It can be applied to any situation where two parties disagree.
Mediation is a popular option for divorce or dissolving a partnership, especially when both partners are looking for a friendlier, less rancorous split. Attorneys who specialize in LGBT family law are often professionally trained in mediation.
Benefits in choosing mediation while pursuing a separation, divorce, or partnership dissolution include:
- Reduction in time spent can ease transition. The sooner a mediator can help both parties reach a solution, the sooner the solutions can be implemented. This allows for less disruption and can ease the transition inherent in the ending of a formal partnership.
- Avoiding significant costs associated with courtroom litigation. Time is money, so by reducing the time spent making decisions on division of assets, child custody, and spouse support, both parties spend significantly less money. The longer a divorce process continues, the more likely that courts will have to get involved, ensuring both increased time and money on paperwork, consultation, and courtroom time.
- Better transition for children. Mediation can show to children that their parents are able to reach agreements in a civil matter, even once their partnership has formally ended. The longer and more expensive a divorce can take, the higher chance for acrimony between the two partners, which can have a significant impact on any children involved.
Partnering with San Diego Divorce Attorney
With over 33 years of experience in same-sex marriage, registered domestic partnerships, divorce, and dissolution of partnership, our team of attorneys and legal professionals at San Diego Divorce Attorney are perfectly positioned to assist with your personal situation. We put to work our expertise in laws around LGBT marriage and divorce, family law, and child custody and support to guide you to your best solution.
Ready for expert assistance on your legal right to same-sex marriage or divorce in California? Call San Diego Divorce Attorney today at 858-529-5150 to schedule your initial consultation with our professional divorce lawyer.